Interpretive Fundamentals of European Private Consumer Law in Theory and Practice Auslegungsgrundsätze des Europäischen Verbraucher-privatrechts in Theorie und Praxis
Jahrgang 71 (2007) / Heft 3, S. 495-526 (32)
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In order to ensure effective freedom of contract, three basic principles need to be observed when integrating EU consumer protection laws into a larger methodological and normative framework. First, consumer protection is one of the macro-principles at the basis of both primary and secondary EU law, which – if applicable – needs to be weighed against other principles, such as private autonomy, pacta sunt servanda, and legal certainty. Secondly, consumer protection norms need to be construed according to the classical canon of interpretation methodology. Thirdly, since consumer protection rules evidence the intention to safeguard the consumer, this intention has to be a guideline especially in the context of teleological interpretation; consumer protection is not just one purpose of the norm to be interpreted, but rather its decisive function that sometimes hides behind the single market notion and competence. The presently advocated concept, which one might term »in dubio pro consumente«, has been criticised by legal science recently. Nonetheless it is – more or less implicitly – applied by the European Court of Justice. While keeping in mind both the limits by the possible mean ings of the term and potentially colliding principles, the consequence to be drawn for consumer protection laws is the following: in case of real doubt as to the interpretation of a norm, one has to give preference to the interpretation which – legally and factually – favours the consumer. This method ensures the practical effectiveness of the Community objective of consumer protection.